Blackwell v. Barnett

• Decision Date: 19 December 1879
• Citation: 52 Tex. 326
• Parties: J. W. H. AND MARTHA BLACKWELL v. J. W. BARNETT ET AL.
• Court: Texas Supreme Court

52 Tex. 326

J. W. H. AND MARTHA BLACKWELL

v.J. W. BARNETT ET AL.

Supreme Court of Texas.

Dec. 19, 1879.

APPEAL from Parker. Tried below before the Hon. A. J. Hood.

On January 13, 1874, the appellants executed and delivered to the appellee Nathan Watson their promissory note, due twelve months after date, for the sum of $500, in gold, drawing interest at the rate of two and one-half per cent. per month from date. On the same day, to secure its payment, they executed and delivered to appellee J. W. Barnett a deed of trust upon their homestead. The deed of trust was in the usual form, and authorized the trustee to sell the homestead at the request of the holder of the note, the sale to be made as required by the law of the State regarding sales of real estate under execution.

On April 19, 1875, appellants paid Watson $100, in gold, on the note. On January 4, 1879, Barnett posted notice at the court-house door, in the town of Weatherford, that he would sell the property described in the deed of trust on February 4, 1879, that being the first Tuesday in February, 1879. On January 13, 1879, four years from the execution, the note expired, it having been, as above stated, executed on January 13, 1874, and being due and payable twelve months after date.

On January 24, 1879, the appellants filed their petition in the District Court of Parker county for a writ of injunction, which was granted by the judge, in vacation, enjoining Barnett from selling. They alleged that they were married; that the estate sought to be sold was their homestead; that the notice of sale was not sufficient in law; that it did not give a true description of the land to be sold; that the notice did not state for what purpose the land was to be sold, nor did it give the name of the beneficiary in the trust, nor at whose request the sale was to be made; that the notice did not state for what amount of money due the property was to be sold.

In their trial amendment, the appellants alleged that if the notice of sale showed, by reference to the records of Parker county, any amount to be due, the amount thus shown was not the true amount; that a less amount was due than was shown by the records; that the records showed that the sum of $1,235 was due on the note, when, as in truth, there was only $1,135 due; that the appellants never have been absent from the State; that the note executed to appellee Watson by appellants was barred by the statute of limitations; that no suit had been instituted upon the same for four years next succeeding the maturity thereof. Appellants asked that Barnett be enjoined from selling. Subsequently they made him a party, and asked that the note be adjudged a stale demand. The Hon. A. J. Hood having been of counsel for appellants, E. P. Nicholson, Esq., was, by agreement of counsel, selected as special judge. After overruling a motion to quash the injunction, he sustained a motion to dismiss the petition. The appellants, after a motion for a new trial was overruled, appealed.

McCall & McCall, for appellants.

I. The court erred in sustaining the motion to dissolve the injunction and to dismiss plaintiffs' bill for injunction, because the petition showed that the advertisement of sale did not give a correct description of the land to be sold, nor did it give the name of the beneficiary, nor at whose request the land was to be sold, nor did the notice give the amount due by the appellants on the note. (Paschal's Dig., art. 3776; Howard v. North, 5 Tex., 302.) As to how a trust with power of sale should be executed, see 2 Perry on Trusts, sec. 602 q; as to what must be stated in the notice, see 2 Perry on Trusts, secs. 602 q,i 602 is.

II. If it should be asserted that by reference to the records of Parker county the amount due upon the note could be ascertained, then we say that the petition and trial amendment showed, and the answer admitted, that $100 had been paid on the note. Hence any amount the notice stated--if it stated any by reference to the records--to be due, was a false and untrue amount, and the notice was therefore insufficient.

The question in this case is not whether the parties could set aside the sale on account of irregularities after the same was made, nor does the question of the rights of a purchaser arise in this matter. It is a question between the parties to the transactions themselves. Now, it is true that our statute regarding advertisements does not prescribe any form of notice; but the question is, would an advertisement of a sheriff that did not state the name of the plaintiff in the suit or the amount due, or if it state an amount which is untrue, would the sale, on motion or injunction, be set aside? (Rorer on Jud. Sales, secs. 721, 732.)

III. The court erred in sustaining the motion to dismiss plaintiff's petition for that the petition showed and alleged that the note sued on was, at and before the bill for injunction was filed, barred by limitation, and that therefore the lien on plaintiff's homestead was also barred and rendered null and void in effect. (Paschal's Dig., arts. 4604, 4617; Buchanan v. Monroe, 22 Tex., 541;Wright v. Henderson, 12 Tex., 44;Given's Administrator v. Davenport, 8 Tex., 451;Ross v. Mitchell, 28 Tex., 154;Duty v. Graham, 12 Tex., 437;Eborn v. Cannon's Administrators, 32 Tex., 244;Perkins v. Sterne, 23 Tex., 561;Maddox v. Humphries, 30 Tex., 496;Tyson v. Britton, 6 Tex., 222;Chevallier v. Durst, 6 Tex., 239;Ellett v. Moore, 6 Tex., 245;Smith v. Kinney's Executors, 33 Tex., 284;Williams v. Durst's Administratrix, 35 Tex., 421;Gautier v. Franklin, 1 Tex., 732;Ayres v. Cayce, 10 Tex., 109; Story on Constr. of Laws, 482; Price v. Luter, 14 Tex., 6.)

We would remark to the court, that the opinions above cited establish the principle that a mortgage or deed of trust is a mere security for debt. They further show that statutes of limitation are statutes of repose, and are given favorable construction, that their objects may be attained. The authorities cited above establish the principle, that when the debt is barred the mortgage is barred; that it is revived if the debt is revived, if there be no stipulation to the contrary. The statutes themselves show and define the exceptions to the running of the statute. The only one in a case of this kind is when the debtor is absent from the State. (Paschal's Dig., art. 24.)

Shannon & Moran, for appellees.

I. The court committed no error in sustaining the motion to dissolve the injunction and dismiss the bill. It is not necessary for the notice to state the name of the beneficiary, nor at whose request the sale is made, nor the amount of the debt, unless required by the power in the deed, or by statute. Under the power contained in the deed, the sale is required to be made as under execution from the District Court, and hence no particular form is necessary. (Paschal's Dig., art. 3776; 12 Wheat., 570; 2 Perry on Trusts, secs. 602 g,i 602 iq,i 602 is, 782.)

II. Neither the power nor any statute requires the notice to state the amount of the debt, or to be of any particular form. (See the foregoing authorities.)

III. The note was not barred at the date of the commencement of proceedings to foreclose, and hence appellees were in time.

We refer to Williams v. Pouns, 48 Tex., p. 146, as to a??ogy recognized by this court between foreclosure under t?? deed on homestead, and suit as affected by statute of limitations. (Story Eq. Jur., sec. 1028-1028 b, 1029; Angell on Lim., secs. 453-456.)

We are told that the court, through its equity lens, views the debt as the gist of the transaction, and the fee as in the mortgagor, and the mortgage merely as security for the debt. So do courts of equity universally; but they in this case, as in other cases, adjust the rights of parties in the light of statutes of the forum, and in this case allow the creditor his remedy upon the deed, and against the land at any time within twenty years, in most States the time within which an entry may be made, or in this State the rule would be ten years.

The mortgagee takes, in the eyes of equity at least, the equitable title to realty, and it would seem that he should hold, under his solemn deed and specialty contract, a higher interest than a simple note of hand would give him, with reference to the statute of limitations. Story, Hilliard, and Angell, in the authorities above cited, elaborate these views; and as we are not aware that the present court is upon record upon this question, we have offered these observations, and hope they may at least be considered.

BONNER, ASSOCIATE JUSTICE.

The controlling question in this case is this: Can a trust deed, with power of sale, be enforced after the debt which it is given to secure is barred by the statute of limitations? For its disposition we shall adopt that rule which seems most to accord with the harmony and consistency of the general law of limitations and the tendency of most of the former decisions of this court.

The case of Sprague v. Ireland, 36 Tex., 657, in which the affirmative of this proposition was announced, was a contest as to the superiority of right under sales by virtue of two trust deeds, given at different times upon the same property, to secure two different debts.

In view of the opinion of the court as therein expressed, that the statute of limitations, to have been made available, should have been specially pleaded,-- as this was not done, it would seem that the decision in that case might have rested upon this point.

The learned justice delivering the opinion, however, cites, seemingly with approval, Hill on Trustees, p. 341, and Gary...